STAMFORD -- The attorney for a Darien man accused of committing a hate crime by stabbing a New York cabbie with a pen knife asked a judge to dismiss the case because of the driver's shifting account and a failure by police to present mitigating evidence.

Attorney Eugene Riccio filed the motion Wednesday morning to dismiss the criminal charges against William Bryan Jennings, 47, of 39 Knollwood Lane. The Darien investment banker was charged with second-degree intimidation based on race or bigotry, second-degree assault and theft of services relating to the Dec. 22 dispute.

This motion to dismiss, sometimes called a Franks motion, is not common. The motion is named after Franks v. Delaware, a 1978 U.S. Supreme Court ruling that determined if probable cause for an arrest warrant was found as the result of a false statement, the warrant is invalid.

"It is my belief that the affidavit ... has material misstatements and omissions to the extent that the charges against my client should be dropped," Riccio said.

Riccio said that after looking at the police reports in the case, he cannot understand why the cab driver did not mention the alleged hate crime during his interview with police for more than an hour immediately after the incident.

Only in a later interview did the Middle Eastern driver tell police that Jennings told him, "I'm going to kill you. You should go back to your own country."

"The most glaring example is the lack of any complaint relating to bias or bigotry on the night of the incident. And according to (the cab driver) there were two different locations where this alleged stabbing supposedly took place," Riccio said.

After accusing investigators of intentionally leaving out exculpatory evidence and including statements that were damaging and misleading, Riccio said, "in light of the intentioned and/or reckless, repeated and substantial false statements and omissions with regard to the affidavit ... the defendant will seek the dismissal of this case."

Darien Police Capt. Fred Komm responded to a request for comment by emailing, "Based on the fact that the Darien Police Department has made an arrest in this case and considers the matter closed, I have no comment on the pending litigation."

According to Jennings' arrest warrant, the driver picked him up in New York City and drove him home to Connecticut late Dec. 22. After bringing him home, Jennings refused to pay a $204 cab fare, offering the driver $50.

The driver said he tried to call police, but could not get cellphone service and began heading downtown to find a cop.

According to the driver, Jennings said he was going to call police. The cabbie told police he ran a red light and saw Jennings try to get out of the cab several times.

While driving through town, the cabbie told police, Jennings told him, "I'm going to kill you."

The cabbie said he felt Jennings try to stab him in the neck with a pen knife on the Post Road, and his hand was cut blocking the attack.

He also told police Jennings got out at the cab near the Darien Sport Shop and ran. The cabbie circled back to the railroad station and contacted police, according to the warrant.

In his seven-page motion to dismiss, Riccio said the driver did not quote Jennings as saying he should return to his own country until a week later.

Riccio also noted that the cab driver originally reported the stabbing took place near Jennings' driveway. A week later the cab driver said the stabbing occurred on the Post Road in Darien, at least a mile away from Jennings' home, Riccio said.

He also first told police Jennings got out of the cab at Squab Lane but changed the story a week later to say he got out by Darien Sport Shop, Riccio said.

Jennings contended the cab driver threatened to take him back to New York City if he did not pay $300, but the cabbie said he was only trying to charge him $204.

Jennings exited the cab 140 yards from the turn that would take the cab to Interstate 95, Jennings said.

Riccio said Jennings declined to take a lie-detector test after Darien police reneged on a promise to get the cabbie to take the test, too. When that happened, Riccio said, he still offered Jennings up for the test, but only if police would drop the case if the test proved positive for his client. Police would not agree, so Riccio said Jennings declined to take the test.

john.nickerson@scni.com; 203-964-2320; http://twitter.com/JNickAdvocate